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Determination of Granting of Protection
Class XA Visas in 2013/2014 Financial Year – IMMI 13/156
FRLI: F2013L02038
Portfolio: Immigration and Border Protection
Tabled: House of Representatives and
Senate, 5 December 2013
Summary of committee concerns
2.1
The committee notes that this instrument has now been revoked by the
Minister. The committee has still considered the instrument and identified its
concerns about human rights compatibility as the instrument is legislation
which has come before the Parliament. However, the committee does not intend to
seek any further information from the Minister at this stage.
Overview
2.2
This instrument determined that the maximum number of visas that may be
granted in the financial year 1 July 2013 to 30 June 2014 for Protection (Class
XA) visas is 1650.[1]
The instrument applied to all applicants who have applied for a Protection
(Class XA) visa, including applicants who have applied before the
implementation of this cap. This instrument has now been revoked by the
Minister.[2]
Compatibility with human
rights
Statement of compatibility
2.3
The committee notes that this instrument is exempt from the requirement
to provide a statement of compatibility as it is not defined as a disallowable
legislative instrument within the meaning of section 42 of the Legislative
Instruments Act 2003.[3]
2.4
As a matter of best practice, however, the committee considers that
legislative instruments which have the potential to affect human rights should
be accompanied by a statement of compatibility.
Committee view on compatibility
2.5
The committee understands that there are approximately 33,000 people who
have arrived in Australia by boat and whose claims for protection have yet to
be processed.[4]
Approximately 5,800 persons are held in immigration detention, 3,300 are in
community detention, 22,900 are in the community on bridging visas and 1,800
are in offshore processing centres.[5]
The committee also understands that the cap of 1650 determined by this
instrument for this financial year has already been reached.[6]
The effect of this instrument would therefore appear be to freeze the processing
of the claims of those 33,000 persons who have arrived in Australia.
2.6
The committee considers that further information on the effect of this
instrument would be necessary to assess its compatibility with human rights.
However, the committee considers that to the extent that the instrument results
in a freeze on processing, it may give rise to issues of compatibility with a
number of human rights.
2.7
The committee considers that this instrument raises several areas
of concern, including:
- whether a freeze on the issuing of protection visas to those
held in immigration detention onshore and offshore is compatible with the
prohibition on arbitrary detention, the right to humane treatment, the right to
health, and children's rights;
- whether a freeze on the issuing of protection visas to those
who arrived in Australia after 13 August 2012 who are in the community on
bridging visas is compatible with the right to work, the right to social
security, and the right to an adequate standard of living; and
- whether a freeze on the issuing of protection visas is
compatible with rights relating to the protection of the family.
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